# Prashant Kumar v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 20
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-06
- **Case number:** Writ-A No. 6672 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prashant-kumar-v-state-of-u-p-ors-48654
- **Pages:** 6

## Headnote

A. Service Law - Selection/Appointment -
Suppression - In case offence is petty in
nature committed at young age, such as
stealing a bread, shouting of slogans or is
such
which
does
not
involve
moral
turpitude, cheating, misappropriation etc. or
otherwise not a serious or heinous offence
and accused has been acquitted or if
disclosed would not have rendered an
incumbent unfit for post in question, in such
a case when verification form is filled,
employer may ignore lapse of suppression
or
submitting
false
information
in
appropriate cases on due consideration of
various aspects. (Para 9, 10)

There was no suppression of relevant facts
or submission of false affidavit at that stage
of verification. It is unfortunate that a criminal
case of trivial nature came to be registered against
the petitioner on 10.05.2021, which was later
withdrawn vide order dated 15.02.2022, but the
petitioner was not aware of the same, as neither
any summons were issued nor he was arrested or
had obtained bail from any competent court.
Therefore, at the time of verification, he gave an
affidavit not disclosing the fact about the pendency
of criminal case, which was not deliberate on his
part. (Para 8, 11)

Therefore,
the
order
impugned
dated
31.03.2022 cancelling the candidature of the
petitioner is not sustainable in the eye of law
and the same is liable to be set aside.

Writ petition allowed. (E-4)

Precedent followed:

## Text

20 INDIAN LAW REPORTS ALLAHABAD SERIES
daughter for compassionate appointment
cannot be considered now after more than
13 years.

15. The writ petition lacks merit and
is dismissed.

16. Consigned to records.
----------
(2022)06ILR A20
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-A No. 6672 of 2022

Prashant Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Atipriya Gautam, Sri Ishir Sripat, Sri Rishabh
Kesarwani, Sri Vijay Gautam(Sr. Adv.)

Counsel for the Respondents:
C.S.C.

A. Service Law - Selection/Appointment -
Suppression - In case offence is petty in
nature committed at young age, such as
stealing a bread, shouting of slogans or is
such
which
does
not
involve
moral
turpitude, cheating, misappropriation etc. or
otherwise not a serious or heinous offence
and accused has been acquitted or if
disclosed would not have rendered an
incumbent unfit for post in question, in such
a case when verification form is filled,
employer may ignore lapse of suppression
or
submitting
false
information
in
appropriate cases on due consideration of
various aspects. (Para 9, 10)

There was no suppression of relevant facts
or submission of false affidavit at that stage
of verification. It is unfortunate that a criminal
case of trivial nature came to be registered against
the petitioner on 10.05.2021, which was later
withdrawn vide order dated 15.02.2022, but the
petitioner was not aware of the same, as neither
any summons were issued nor he was arrested or
had obtained bail from any competent court.
Therefore, at the time of verification, he gave an
affidavit not disclosing the fact about the pendency
of criminal case, which was not deliberate on his
part. (Para 8, 11)

Therefore,
the
order
impugned
dated
31.03.2022 cancelling the candidature of the
petitioner is not sustainable in the eye of law
and the same is liable to be set aside.

Writ petition allowed. (E-4)

Precedent followed:

1. Avtar Singh Vs U.O.I. & ors., 2016 (8) SCC
471 (Para 5)

2. Pawan Kumar Vs U.O.I. & anr., AIR 2022 SC
2829 (Para 5)

3. St. of U.P. & ors. Vs Vijay Kumar & ors.,
Special Appeal (Def.) No. 734 of 2016 (Para 5)

Present
petition
assails
order
dated
31.03.2022, passed by the Commandant
44th Bn. P.A.C., Meerut, District Meerut, by
which the candidature of the petitioner for
selection/appointment on the post in
question has been cancelled.

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Vijay Gautam, Senior
Advocate
assisted
by
Mr.
Rishabh
Kesarwani,
learned
counsel
for
the
petitioner and learned Standing Counsel for
the State-respondents.

2. This writ petition has been filed by
the petitioner with the following prayer:-

"(i) Issue a writ, order or direction in
the nature of certiorari quashing the
6 All. Prashant Kumar Vs. State of U.P. & Ors.
21
impugned order dated 31.03.2022 passed
by the respondent no.6, (enclosed as
Annexure no.1) to the writ petition by
which the candidature of the petitioner for
selection/appointment on the post of
Constable Civil Police and Constable PAC,
Direct
Recruitment-2018-II
has
been
cancelled.

(ii) Issue a writ, order or direction, in
the nature of mandamus, commanding the
respondent authorities, to appoint the
petitioner finally for the post of Constable
Civil Police and Constable PAC, Direct
Recruitment-2018-II,
pursuant
to
the
advertisement dated 16.11.2018 and in
pursuance of the select list issued vide
notification dated 02.03.2020 with all
consequential benefits.

(iii) Issue a writ, order or direction in
the nature of mandamus, directing the
respondent
authorities,
to
send
the
petitioner for necessary training on the
post of Constable Civil Police and
Constable PAC, direct Recruitment-2018-II
pursuant
to
the
advertisement
dated
16.11.2018 and in pursuance of the select
list
issued
vide
notification
dated
02.03.2020...."

3. Learned counsel for the petitioner
submits that the petitioner applied pursuant
to the advertisement dated 16.11.2018 for
the post of Constable Civil Police and
Constable PAC, Direct Recruitment-2018II. The petitioner appeared in the written
examination
on 27.01.2019. He
was
declared successful in written examination
and, thereafter, he appeared in document
verification & Physical Efficient Test (PET)
and he was declared medically fit in the
aforesaid test. As per the final list of
selected candidates, which was published
on 02.03.2020, the petitioner was shown as
successful candidate. Thereafter, he was
allotted district-Meerut for joining his
training, however, the competent authority
has not permitted the petitioner to join his
training (JTC), on the ground that the
petitioner has given a false affidavit with
respect to pendency of criminal case, which
was lodged against the petitioner and one
unknown person on 10.05.2021 being Case
Crime No.142 of 2021, under Sections 188,
269, 270 IPC and 3 Epidemic Act at P.S.
Doghat, District-Baghpat.

4. Learned counsel for the petitioner
further submits that pursuant to the order
passed by this Court dated 08.10.2021 in
Cri. Misc. Writ Petition No.7787 of 2021
(Vinay Kumar and Ors. vs. State of U.P.
and Ors.), the State Government has
withdrawn all the criminal proceedings,
which have been initiated under Epidemic
Act 1987, during pandemic of Covid-19 on
26.10.2021. Pursuant to the aforesaid, the
criminal case lodged against the petitioner
has also been withdrawn on 15.02.2022.
The petitioner was neither arrested nor he
has obtained bail from any court in the
aforesaid case and the said FIR was lodged
behind the back of petitioner as the
petitioner did not have any knowledge
about lodging of the said FIR, therefore, at
the time of submitting the affidavit, he has
not disclosed about the aforesaid criminal
case,
which
was
later
withdrawn.
Subsequently, the impugned order dated
31.03.2022 has been passed by respondent
no.6 whereby the candidature of the
petitioner has been cancelled in an arbitrary
manner without application of judicial
mind, therefore, the order impugned cannot
be sustained in the eye of law.

5. He further submitted that as the
aforesaid
criminal
case
against
the
petitioner has been withdrawn vide order
dated 15.02.2022 and he has already been
exonerated from all the charges, therefore,
22 INDIAN LAW REPORTS ALLAHABAD SERIES
the case of the petitioner should have been
considered
while
passing
the
order
impugned. He further submits that while
passing the order impugned, the respondent
authorities has not applied their mind and
passed
a
technical
order
without
considering the directions as issued by the
Apex Court in the cases of Avtar Singh Vs.
Union of Indian and others, reported in
2016(8) SCC 471 and Pawan Kumar vs.
Union of India and another reported in
(2022) 0 Supreme (SC) 391. He further
submits that the petitioners' claim for
appointment is liable to be considered in
the light of Avtar Singh (supra), which has
been followed by the Division Bench of
this Court in Special Appeal (Def.) No. 734
of 2016 (State of U.P. and others Vs. Vijay
Kumar and others). Contention is that the
petitioner's claim has not been examined, in
accordance with law.

6. On the other hand, learned
Standing Counsel submits that at the time
of submission of affidavit, a criminal case
was
pending
against
the
petitioner,
therefore, the petitioner has suppressed the
fact of pendency of criminal case and
submitted a false affidavit, hence he is not
entitled to be considered for appointment
on the said post, as any person desirous of
holding the post of government servant has
to act with utmost good faith and
truthfulness. He further submits that there
is no illegality or infirmity in the order
impugned, therefore, the writ petition is
liable to be dismissed.

7. I have considered the submissions
made by learned counsel for the parties as
well as gone through the entire materials
brought on record.

8. Undisputedly, on the date, when the
affidavit has been submitted by the
petitioner, though a criminal case was
instituted against the petitioner but he did
not have knowledge of the same as neither
any summons were issued nor he was
arrested or had obtained bail from any
competent court, therefore, there was no
suppression of relevant facts or submission
of false affidavit at that stage. It is
unfortunate that a criminal case of trivial
nature came to be registered against the
petitioner on 10.05.2021, which was later
withdrawn, but the petitioner was not aware
of the same, therefore, at the time of
verification, he gave an affidavit not
disclosing the fact about the pendency of
criminal case, which was not deliberate on
his part.

9. The Apex Court in the case of
Avtar Singh Vs. Union of Indian and
others, reported in 2016(8) SCC 471 has
held that in case offence is petty in nature
committed at young age, such as stealing a
bread, shouting of slogans or is such which
does not involve moral turpitude, cheating,
misappropriation etc. or otherwise not a
serious or heinous offence and accused has
been acquitted in such a case when
verification form is filled, employer may
ignore lapse of suppression or submitting
false information in appropriate cases on
due consideration of various aspects. It has
also
held
that
non-disclosure
of
conviction/acquittal in a case of trivial
nature such as shouting slogans at young
age or for a petty offence which if disclosed
would not have rendered an incumbent
unfit for post in question, the employer
may,
in
its
discretion,
ignore
such
suppression of fact or false information by
condoning the lapse. Paragraph no. 38 of
the aforesaid judgment is as under:-

"38.
We
have
noticed
various
decisions and tried to explain and reconcile
6 All. Prashant Kumar Vs. State of U.P. & Ors.
23
them as far as possible. In view of
aforesaid discussion, we summarize our
conclusion thus:

38.1
Information
given
to
the
employer by a candidate as to conviction,
acquittal or arrest, or pendency of a
criminal case, whether before or after
entering into service must be true and there
should be no suppression or false mention
of required information.

38.2
While
passing
order
of
termination of services or cancellation of
candidature for giving false information,
the employer may take notice of special
circumstances of the case, if any, while
giving such information.

38.3 The employer shall take into
consideration
the
Government
orders/instructions/rules, applicable to the
employee, at the time of taking the decision.

38.4 In case there is suppression or
false information of involvement in a
criminal case where conviction or acquittal
had already been recorded before filling of
the application/verification form and such
fact later comes to knowledge of employer,
any of the following recourse appropriate
to the case may be adopted : -

38.4.1 In a case trivial in nature in
which conviction had been recorded, such
as shouting slogans at young age or for a
petty offence which if disclosed would not
have rendered an incumbent unfit for post
in question, the employer may, in its
discretion, ignore such suppression of fact
or false information by condoning the
lapse.

38.4.2 Where conviction has been
recorded in case which is not trivial in
nature, employer may cancel candidature
or terminate services of the employee.

38.4.3 If acquittal had already been
recorded in a case involving moral
turpitude or offence of heinous/serious
nature, on technical ground and it is not a
case of clean acquittal, or benefit of
reasonable doubt has been given, the
employer may consider all relevant facts
available as to antecedents, and may take
appropriate decision as to the continuance
of the employee.

38.5 In a case where the employee has
made declaration truthfully of a concluded
criminal case, the employer still has the
right to consider antecedents, and cannot
be compelled to appoint the candidate.

38.6 In case when fact has been
truthfully declared in character verification
form regarding pendency of a criminal case
of trivial nature, employer, in facts and
circumstances of the case, in its discretion
may appoint the candidate subject to
decision of such case.

38.7
In
a
case
of
deliberate
suppression of fact with respect to multiple
pending cases such false information by
itself will assume significance and an
employer may pass appropriate order
cancelling candidature or terminating
services as appointment of a person against
whom multiple criminal cases were pending
may not be proper.

38.8 If criminal case was pending but
not known to the candidate at the time of
filling the form, still it may have adverse
impact and the appointing authority would
take
decision
after
considering
the
seriousness of the crime.

38.9 In case the employee is confirmed
in service, holding Departmental enquiry
would be necessary before passing order of
termination/removal or dismissal on the
ground of suppression or submitting false
information in verification form.

38.10 For determining suppression or
false information attestation/verification
form has to be specific, not vague. Only
such information which was required to be
specifically mentioned has to be disclosed.
If information not asked for but is relevant
24 INDIAN LAW REPORTS ALLAHABAD SERIES
comes to knowledge of the employer the
same can be considered in an objective
manner while addressing the question of
fitness. However, in such cases action
cannot be taken on basis of suppression or
submitting false information as to a fact
which was not even asked for.

38.11 Before a person is held guilty of
suppressio veri or sugge6716The stio falsi,
knowledge of the fact must be attributable
to him."

10. Following the judgment in the
case of Avtar Singh (supra), the Apex
Court in its latest judgment in the case of
Pawan Kumar vs. Union of India and
another, reported in 2022 0 Supreme (SC)
391, has held that by mere suppression of
material/false information regardless of fact
whether conviction or acquittal has been
recorded, employee/recruit is not to be
discharged/terminated axiomatically from
service just by a stroke of pen. At the same
time, effect of suppression of material/false
information involving in a criminal case, if
any, is left for employer to consider all
relevant facts and circumstances available
as to antecedents and keeping in view
objective criteria and relevant service rules
into consideration, while taking appropriate
decision regarding continuance/suitability
of employee into service. Paragraph no. 16
of the aforesaid judgment is as under:-

"16. The judgment relied upon by the
respondent
Rajasthan
Rajya
Vidyut
Prasaran Nigam Limited andanotherv. Anil
Kanwariya(2021) 10 SCC 136may not be
of any assistance for the reason that it was
a case where the respondent employee
before submitting application pursuant to
the advertisement inviting applications was
convicted by the competent Court of
jurisdiction and this fact was not disclosed
by him while filling his application form
and that was the reason favoured upon the
Court while upholding action of the
authority
in
passing
the
order
of
termination which was impugned in the
proceedings. We have already quoted
paragraph 38 of the judgment by a threeJudge Bench of this Court in Avtar Singh
(supra) and in the context of the factual
background of the present case applied the
said principles. One distinguishing factor,
as noticed above, is that the criminal
complaint/FIR in the present case was
registered
post
submission
of
the
application form. We have also taken into
account the nature of the allegations made
in the criminal case and that the matter
was of trivial nature not involving moral
turpitude. Further, the proceedings had
ended in a clean acquittal. As is clear from
paragraph 38 in Avtar Singh (supra), all
matters cannot be put in a straitjacket and
a degree of flexibility and discretion vests
with the authorities, must be exercised
with care and caution taking all the facts
and circumstances into consideration,
including the nature and type of lapse."

11. Having considered the arguments
raised by learned counsel for the parties
and having gone through the case laws as
referred hereinabove, this Court finds that
at the time of submission of affidavit, the
criminal case was already registered against
him but the petitioner did not have
knowledge of the same as neither any
summons were issued nor he was arrested
or had obtained bail from any competent
court, therefore, there was no suppression
of facts or submission of false affidavit at
that stage. Also the aforesaid criminal case,
which is trivial in nature was withdrawn
vide order dated 15.02.2022, hence the
competent authority while passing the order
impugned has failed to follow the mandate
of the Apex Court in the case of Avtar
6 All. C/M Shiraze Hind Inter College, Jaunpur & Anr. Vs. State of U.P. & Ors.
25
Singh (supra) and Pawan Kumar (supra),
therefore,
the
order
impugned
dated
31.03.2022 cancelling the candidature of
the petitioner is not sustainable in the eye
of law and the same is liable to be set aside.

12. In view of the above, the
impugned order dated 31.03.2022 passed
by respondent no.6 is set aside and the
matter is remitted to the respondent no.6,
who in turn, shall consider the case of the
petitioner herein and take a decision afresh,
in accordance with law as well as keeping
in view the law laid down by Apex Court in
Avtar Singh (supra) and Pawan Kumar
(supra), within a period of two months
from the date of receipt of certified copy of
this order, if there is no other legal
impediment.

13.

With
the
aforesaid
observations/directions, this writ petition is,
accordingly, allowed.
----------
(2022)06ILR A25
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 9763 of 2021

C/M Shiraze Hind Inter College, Jaunpur &
Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Raees Ahamad, Sri Sanjay Kumar Om

Counsel for the Respondents:
C.S.C., Sri Rahul Mishra, Ms. Shahla Naz

A. Service Law - Jurisdiction - Power to
stay order of termination - U.P. Secondary
Education Services Selection Board Act,
1982: Section 30, 32; U.P. Intermediate
Education Act, 1921: Section 16(G) to
16(I), 16(G)(3)(a), 16(G)(7), 16-FF; U.P.
High Schools And Intermediate Colleges
(Payment Of Salaries Of Teachers And
Other Employees) Act, 1971 (U.P. Act No
24 of 1971) - The District Inspector of
School has no jurisdiction to interfere with
the power of administration of minority
institution
w.r.t.
their
right
to
take
disciplinary action against their staff.
Petitioner's college is a minority college,
therefore, District Inspector of School has no
jurisdiction to pass the order dated 25.02.2021.
(Para 31, 32)

U.P. Intermediate Education Act, 1921 -
Sections 16(G)(3)(a) - Since no appropriate
guidelines have been provided for exercise of
power u/s 16G(3)(a) of the Act, such an
uncanalised power on the Inspector or the
Inspectress would tantamount to an inroad into
the power of disciplinary control of the
Managing Committee of the minority institution
over its employees; hence the said provision
would not apply to the minority institution
as it impinges the right of minority to have
disciplinary control over its employees.
(Para 23, 24, 28)

Protection is given to the minority institutions
u/Art. 30(1) of the Constitution of India for their
administration. Regulations which are framed to
ensure the standard of institution and are for
the benefit of institution are permissible, but the
moment it goes beyond a mere regulation and
may impair the right of administration of
minority institutions, Art. 30 of Constitution of
India comes into play and such regulation is hit
by Art. 30 of Constitution of India. (Para 27)

B. U.P. Secondary Education Services
Selection Board Act, 1982 - Sections 30 &
32 - It is worth to point out that after
enactment of Act, 1982, the power of approval
or disapproval as provided u/s 16(G)(3)(a) of
the Act, 1921 has been vested in the Board
under the Act No. 5 of 1982. S.32 of the Act No.
5 of 1982 which deals with the applicability of
Act, 1921 and provides that provision of Act,
1921 and regulations framed therein so far as
they are not inconsistent with the provisions of